The law, the court, and I: from the personal to the universal

Some editorials and rule-of-law NGOs have in recent years taken to calling Maltese courts dysfunctional. After 9 years of research, and being actively or solely involved in many cases in various courts, I can be more diagnostic – not in a dry manner, but in publishing about specific stories, intermingled with diagnostic and analytical exposition, that illustrates the nature of the endemic malaise of Malta’s justice system.

To that end, I am preparing a series of articles and artworks that would cover themes such as the following:  

• bad case management by most courts;
• court staff not sufficiently trained, and demotivated; 
• lawyers made gatekeepers – at odds with law – and some of them abusing of that gatekeeping role; 
• accountability system for lawyers and members of the judiciary faulty in law and weak in structure; 
• people who go to constitutional courts for redress in a range of cases end up spending more out of pocket to litigate than is awarded in constitutional courts after they win; 
•  the body that appoints members of the judiciary doing a very poor job; 
• many graduate lawyers have poor grasp of law and legal studies; 
• relatively high incidence of judgements that are wrong on basic legal principles, or letter of law; 
• pressure on members of the judiciary to be expedient resulting in hasty judgements and/or poorly thought-out decrees, in turn further clogging the system by appeals and human rights cases; 
• no accountability for court experts who get it wrong or create delays due to indifference or incompetence; 
• a system that, as far as people are concerned, is prone to indifference and abuse, and works badly for ordinary litigants; 
• and much more

I will also write about what happens when you do what I do: represent yourself. (That in itself reveals a lot about the justice system.) 

I am able to do that – and write about this – thanks to insight gleaned from 9 years of research, many hours of discussions with court sources and jurists, thousands of hours spent reading judgements and laws, and direct experience working on multiple court cases in various courts. I have also participated in misconduct proceedings against a lawyer, and made two official complaints against members of judiciary. 

I have to qualify all of the above by pointing out some other things. First, it is not all bad. There are some exemplary members of the judiciary – and I will also write about those too, because I want my articles to inspire and rally, and not simply be a lament. 

Moreover, the problem is also much wider than what happens in court: part of the problem are badly-drafted laws, including provisions that are unworkable and perplexing, as well as tribunals that make bad decisions that then generate further appeals in court, further straining the court system. Chief among these is the planning tribunal. 

The police are also part of the problem, especially in minor cases, simply processing the cases and escalating them to court to let the magistrate decide – instead of deciding themselves whether to prosecute on basis of law, evidence, and proper investigation (which is what the law obliges them to do). 

The endemic nature of the malaise of the justice system can be encapsulated by this paradox: Malta now has the highest per-capita expenditure on justice in the EU while simultaneously having the longest delays and the worst track record in the European Court of Human Rights, Europe’s highest human rights court. According to justice grandee and retired judge Giovanni Bonello, who served at the European Court of Human Rights for 8 years, Malta has the highest proportion of losses in that court: around 90 percent of all cases are decided against the Maltese State, with the State being found to have violated the fundamental rights of litigants who resort to that court as the final court of remedy. This also means that these 90 percent of litigants were not given a remedy against injustice in the Maltese constitutional court. 

I shall name the series The Law, the Court, and I. The ‘I’ in the campaign or series title is telling: the stories will start from the personal and then expand into the universal. This is the form that literary fiction takes; the travails and struggles of the story protagonist (the personal) serve to draw out, and show us, larger universal truths about the human condition. In this case, indvidual stories would show the contours of what is wrong and why.  

Through such revelation I also seek to inspire community interest, and that eventually will herald change.

Community interest obviously needs a community: fill in the form below to subscribe to a newsletter specifically about this series. In addition to announcement on publication of new stuff, the newsletter will also at times have exclusive content not published on this website or elsewhere.